The plaintiff purchased frozen french fries which were imported to New Zealand (NZ) from Canada. They were transported from New Annan, Prince Edward Island, Canada, to Feilding, NZ. The shipments were made by land from New Annan to the port of Philadelphia, United of States of America (USA). They were then loaded onto various vessels and transported by sea to the port of Wellington, NZ. They were then transported by road and rail from Wellington to the plaintiff's coolstore in Feilding. Shipments were made between September 1995 and January 1996 under the bills of lading of the second and third defendants. The second defendant's bill provided:

In any event, the carrier and any participating carrier shall be discharged from all liability of whatsoever nature unless suit is brought within one year after delivery of the goods or the date when the goods should have been delivered.

The third defendant's bill provided:

The carrier shall be discharged of all liability under this bill of lading unless suit is brought and notice thereof given to the carrier within 9 months after delivery of the goods or the date when the goods should have been delivered.

The plaintiff alleged that the french fries were damaged due to temperature control problems. The plaintiff issued proceedings with a statement of claim (SOC) on 10 October 1996. The plaintiff desired to amend its claim and filed its first amended SOC (SOC A1) on 14 June 1999. SOC A1 added references to damage during land transportation in Canada, USA, and NZ. The amendments changed the claim from a claim for damages arising during the ocean voyage to damage arising during the entire carriage. The defendants applied to strike out parts of SOC A1 which alleged land transportation, arguing that that such claims were time-barred under the bills of lading. The defendants cited The Kefalonia Wind [1986] 1 Lloyd's Rep 273, 283. The defendants argued that SOC A1 called upon the defendants to account for the possibility of damage occurring during land transportation and be concerned with potential liability under the land carriage laws of Canada, USA, and NZ. The defendants argued that this introduced one or more new (and time-barred) causes of action. Separately, the defendants did not challenge the introduction by SOC A1 of a claim in negligence and bailment in respect of each shipment.

Held: Application dismissed.

There is no basis for striking out. The bills' provisions are similar to the Hague-Visby Rules though not identical. Article 3.6 of the Rules as set out in Sch 5 to the Maritime Transport Act 1994 (NZ) states:

The carrier and the ship shall in any event be discharged from all liability whatsoever in respect of the goods, unless suit is brought within one year of their delivery or of the date when they should have been delivered.

In each case, the discharge from all liability occurs after a period, unless suit is brought.

The bills' terms can support, in an appropriate case, the argument that no cause of action remains due to effluxion of time. An amended claim introducing a fresh cause of action (see Chilcott v Goss [1995] 1 NZLR 263, 273 (NZCA)) that is contractually time barred can be an abuse of process under Court procedural rules (Partridge v Bellevue Nominees Ltd (High Court, Auckland, CP 335/93, 26 March 1998)) but only in a very clear case: Ronex Properties Ltd v John Laing Construction Ltd [1982] 3 All ER 961, 966 (CA) (Ronex). Alternatively, the amended claim can be challenged on the basis that there is no reasonable cause of action due to a contractual term providing that the effluxion of time eliminates the cause of action: Ronex 965. This is different from a statutory time bar under the Limitation Acts. When the Limitation Act is pleaded, the remedy – but not the right – is time-barred subject to various exceptions: Ronex 965. See also Aries Tanker Corp v Total Transport Ltd [1977] 1 WLR 185 (HL) (CMI2194). The Limitation Act provisions prohibit the bringing of actions, in contrast with the bills' terms, which provides for the discharge of liability. When liability is discharged, there is no cause of action.

Liability was not discharged by the contractual time bars in the bills because the original suit has been brought within time, and because the amended claim is unchanged from the original claim, save for the place where damage to the goods is alleged to have occurred has been extended: The Kapetan Markos NL [1986] 1 Lloyd's Rep 211 (CA). The phrase 'unless suit is brought within one year' found in art 3.6 was also considered in Anglo Irish Beef Processors International v Federated Stevedores Geelong [1997] 1 Lloyd's Rep 207 (Anglo Irish Beef) (CMI943). That case approved the following statement of the minimum requirement for bringing of suit to satisfy art 3.6 (Anglo Irish Beef 221): the correct plaintiff must have validly commenced proceedings, before a competent court, against the correct defendant, and that those proceedings are not brought in breach of any agreement as to the choice of forum, and that the proceedings remain valid and effective at the time when the carrier seeks to rely upon art 3.6.

The Court rejected the plaintiff's argument that the SOC did include an allegation of damage during land transportation. Nevertheless, the amendments are an extension of the same contract and do not constitute a new cause of action. SOC A1 did not introduce a completely new matrix of fact or legal foundation for the claim. SOC A1 shifts the points at which the plaintiff must establish that the fries were in good order and condition from the time of loading onboard the vessel in Philadelphia in the case of ocean transportation to the place of manufacture at New Annan. Similarly, the point before which the plaintiff must establish the occurrence of the damage shifts from Wellington in the case of the ocean transportation to Feilding, in relation to SOC A1. The amendments are not time-barred.

Subsequently, the defendants applied for a review. It was dismissed by Paterson J: Heinz-Wattie Ltd v Hamburg Sudamerikanische Dampschiffahrts-Gesellschaft [2000] BCL 416.